Dan Carpenter: Should Indiana collect DNA from everyone who is arrested?

Jun. 7, 2013

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A key state senator and the state prosecutors’ association hail it as a body blow to the bad guys.

A veteran defense lawyer and a leading civil liberties advocate call it an ominous intrusion of big government into the lives of the innocent.

A professor of criminal law questions the usefulness of a potentially huge database of DNA that lumps certified criminals with hordes of highly unlikely suspects.

Certainly, last week’s ruling by the U.S. Supreme Court allowing authorities to take DNA samples from persons who’ve been arrested but not convicted comes at a testy time for trust in the powers that be.

News about the mass gathering of Verizon phone records by the National Security Agency, on top of the tax targeting and media surveillance scandals, has made bedfellows of rightists and leftists in fear of what accelerating technology might do to bedrock freedoms.

“What right does the state have to investigate unsolved crimes by getting information from people that we would traditionally think was private?” asked Kenneth Falk, legal director for the American Civil Liberties Union of Indiana.

“It’s as if the police came into my house and said ‘We know you haven’t done anything wrong now, but we’re checking to see if you’ve done anything in the past — or might in the future.’ ”

Falk was not surprised that Justice Antonin Scalia joined three liberals in dissenting from the 5-4 decision.

“The idea that government can create a database of people who have committed no offense is a broad expanse of power that most people do not want, whether they are liberal or conservative.”

Still, a little more than half the states allow the swab-on-arrest tactic, as does the federal government. Indiana will join them if state Sen. Thomas Wyss, R-Fort Wayne, has his way. He sponsored legislation in this past session to permit the procedure on arrests for serious crimes. The bill was voted down, 34-16, in the GOP-dominated Senate, a result Wyss says rooted in a kind of phobia toward DNA on the part of “the far right and the far left.” He also blames lack of knowledge on the part of lawmakers, the news media and the general public.

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Wyss plans to reintroduce the measure next year. He has the enthusiastic support of the Indiana Prosecuting Attorneys Council, whose spokesperson lauded the court decision as a breakthrough for solving cold cases.

Insisting “this would be no different than what we do with fingerprinting,” Wyss said worries about misuse of the information are groundless in light of the fact that only about a dozen of the billions of DNA “markers” are collected, leaving aspects such as family disease history in darkness.

Frances Watson, a professor at Indiana University School of Law in Indianapolis, has her doubts.

For one thing, she says, the government used to call the handful of separated markers “junk genes” that contained no DNA codes, “and now they’re saying maybe they were wrong about that.” The FBI is considering increasing the number of markers, she added.

Besides the constitutional issues, she notes, there are logistical concerns. “If all states started putting everybody who’s arrested in the database, you’d have a lot of innocent people in there. Would this slow down law enforcement?”

Current Indiana law, which restricts the DNA sampling to convicted persons, “is pretty reasonable,” she said. “It’s more efficient when you just have the bad guys.”

Like Falk, and like Scalia, she rejects the fingerprinting analogy, declaring “It’s not about identifying the suspect; it’s about catching more criminals.”

She agrees with the ideologically distant Scalia that the Fourth Amendment, forbidding unreasonable search and seizure, demands more in the way of probable cause.

Wyss, who became a believer in DNA tracking when it solved the rape and murder of a Fort Wayne woman in the late 1980s, ranks nothing higher as a law enforcement tool. “You can’t say an eyewitness saw what he says he saw. With DNA, beyond a shadow of a doubt, you are guilty or innocent. This is a benefit to the people of Indiana and bad news for the bad guys.”

Robert Hammerle, who recalls seeing DNA evidence misused against his clients in criminal court, finds the high court decision indicative of the hypocrisy of the right — Scalia aside.

“Here you have a conservative court that is known by its support for the tea party and other conservative causes allowing government to do the very thing they’re so vocal in opposing. It’s fascinating.

“To me, it’s kind of like saying you could solve a lot of old cases by allowing torture. You could. The issue is individual freedom and privacy. To have to submit to a DNA swab is to allow government, without a warrant, into your private life — your body.”

The prospect of adding lots more Hoosiers to a national database overseen by the Obama administration may make Wyss’ plan a tough sell next time around, notwithstanding the go-ahead from the Supreme Court. Like the Internet, like medical advances, DNA presents daunting challenges to stewards of cherished principles.